Feel Cheated by The Boss? Workers Have an App for That

R. DANIEL BORDONI, a lawyers with Bond, Schoneck & King, talks to Mary Cavanagh, with VNA Homecare Inc. before speaking to more than 100 human resources professionals about trends in labor laws.Ellen M. Blalock, The Post-Standard

Federal agencies involved with protecting workers are stepping up their activities and challenging long-standing workplace polices, according to an area labor lawyer.

Speaking to more that 100 human resource professionals at a conference at the Holiday Inn in Salina, attorney R. Daniel Bordoni said laws that have been on the books for decades are being interpreted by agencies in ways that may require employers to take another look at everything from employment applications to employee handbooks and how they conduct investigations into sexual harassment allegations.

But first, he said, agencies are trying to educate workers about their rights and get them engaged. He said a smartphone app lets workers track their work hours so they can check on whether the company they work for is paying them properly. The premise, Bordoni said, “you should be suspicious of your employer.”

Another app allows users to search for restaurants, stores and hotels. The results that come back include whether the business had violations of federal labor rules.

The National Labor Relations Board, an agency usually associated with unionization votes, has a page on its website that allows visitors to click on map points to learn about complaints the agency has heard from non-union workers. “These are emotionally charged, heart-rending stories,” Bordoni said.

Bordoni said the Equal Employment Opportunity Commission, the agency that enforces federal anti-discrimination laws, was effectively changing the laws and creating new groups of people to whom they apply.

Under written law, anti-discrimination protections are based on race, color, religion, sex, national origin, disability, age or — under the four-year-old Genetic Information Nondiscrimination Act — genetic information.

But, Bordoni said, the EEOC was interpreting the laws to add to that list sexual orientation, caregivers and those with criminal records.

“The laws have not changed, but the agencies are going to tell you they are changing the law.”

Bordoni cited a case in which a women with young children was denied a promotion because her employer thought she would be overwhelmed. The EEOC blamed a “a sex-based stereotype” and ruled against the employer.

Likewise, he said, men who were denied time off under the Family Medical Leave Act could also win because such a decision could be seen as a gender stereotype.

The standard question on employment forms that ask if an applicant has been convicted of a crime, often followed by “if so, explain,” may not be allowed under the latest EEOC rulings, Bordoni said.

As Bordoni explained it, the EEOC wants the question to be asked not on the application, but later in the employment process so that “a conviction will be objectively weighed against the candidate’s experience, skills and potential.”

AFL-CIO President Richard Trumka (left) accompanied by Mary Kay Henry, International President of the Service Employees International Union and Lee Saunders, president of the American Federation of State, County and Municipal Employees, speaks to reporters outside the White House in Washington Nov. 13 after a meeting between business leaders and President Barack Obama.Carolyn Kaster/AP

Bordoni said that New York state law already covers the issue. It says convictions can be taken into account if they directly affect a job.

If a company has been complying with state law, the federal change probably won’t matter, he said.

Likewise, New York already protects people based on sexual orientation.

Recent decisions by the NLRB may require a change to employee handbooks. Many include a section declaring all workers are “at will.” That means no one is guaranteed a job and can be let go — or quit — at any time. The section may amplify the point by adding that no one at the workplace can change that and nothing in the handbook should be taken to mean otherwise.

In February, a judge found such a stated policy violated the National Labor Relations Act because an employee might understand it to mean they could not “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

That language comes from the National Labor Relations Act and is now being taken to mean that employer policies can’t stand if they could be reasonably understood by an employee to mean they can’t get together with other workers to complain about wages or work conditions.

Likewise, telling employees they have to keep quiet about an investigation of harassment or some other issue at work appears to violate the labor relations act, Bordoni said. While confidentially has long been a way employers have tried to protect those making allegations, the NLRB now thinks it could be seen as keep workers from coming together on an issue.

Bordoni’s advice: Let workers involved know how important confidentiality is to the investigation and ask, but don’t require, them to remain quiet about the matter.

The NLRB also reversed a long-standing rule regarding off-duty employees. Since the 1970s, Bordoni said, companies have been able to limit what part of work sites employees can visit during off hours. They could, for example, stop by the office to pick up paychecks, but not go onto the factory floor.

Now, however, the NLRB is saying that policies must uniformly prohibit or allow off-duty access, he said. “This is really a shocker,” he said.

Bordoni said the changes at the agencies reflect the politics of the administration and its appointees. “It’s a not very well-disguised effort to encourage unionization in the workforce,” he said.